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March 24, 2026 Get Citation Alerts Download PDF Add Note

D. Lawrence v. PA PUC

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 1346 C.D. 2024
• Precedential Status: Non-Precedential
• Panel: Bonnie Brigance Leadbetter, Patricia A. McCullough

• Judges: McCullough. Leadbetter

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (2K)

• PDF

Combined Opinion

                        by McCullough. Leadbetter

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

:
Darryl Lawrence, :
Petitioner :
:
v. : No. 1346 C.D. 2024
:
Pennsylvania Public Utility : Argued: December 8, 2025
Commission, :
Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION1
BY JUDGE McCULLOUGH FILED: March 24, 2026
Darryl Lawrence, Acting Consumer Advocate, Office of Consumer
Advocate (OCA) petitions for review of the September 12, 2024 order entered by the
Pennsylvania Public Utility Commission (Commission) that approved a non-
unanimous settlement relating to a general rate increase filed by Peoples Natural Gas
LLC.2 On appeal, the OCA challenges the Commission’s denial of its request that the

1
This opinion is filed pursuant to Section 256(b) of the Internal Operating Procedures of the
Commonwealth Court, 210 Pa. Code § 69.256 (b).

2
Peoples Natural Gas LLC includes Peoples Natural Gas Division and Peoples Gas Division
(referred to collectively herein as Peoples).
Commission order Peoples to conduct a root cause analysis3 concerning its service
termination procedures for non-payment of account arrears, which the OCA contends
has a disparate impact on Black households in Peoples’ service territory in violation of
Section 1501 of the Public Utility Code (Code), 66 Pa.C.S. § 1501, which requires
public utilities to maintain adequate and reasonable service.4 Peoples, however,
maintains that the OCA, by failing to raise this disparate impact issue before the
Commission, has waived its ability to argue it on appeal. After careful review, we are
constrained to agree with Peoples that the disparate impact issue has been waived
because it was never presented to the Commission, and must affirm on this basis.
Background
The relevant facts and procedural history of this case are as follows.
Peoples is a natural gas distribution company and a public utility subject to the
regulatory jurisdiction of the Commission. On December 29, 2023, Peoples filed
original Tarriff Gas Pa. P.U.C. No. 48 proposing changes in rates, rules, and
regulations, which it projected would produce $156 million dollars in additional annual
revenue. On January 5, 2024, the OCA filed a formal complaint opposing Peoples’
proposed tariff changes, and the Bureau of Investigation and Enforcement (I&E)
entered an appearance. The Office of the Small Business Advocate (OSBA) filed a
formal complaint on January 11, 2024. On January 18, 2024, the Commission
suspended the proposed tariff until September 27, 2024, for assessment of its legality,

3
“A root cause analysis is a fact-based exercise in which the underlying cause or causes of
an undesirable outcome are identified and specific remedial steps are identified and determined to
result in correcting or improving the previously identified undesirable result.” (Reproduced Record
(R.R.) at 212, Direct Testimony of Barbara R. Alexander.)

4
Section 1501 of the Code requires public utilities in relevant part to “furnish and maintain
adequate, efficient, safe, and reasonable service and facilities[.]” 66 Pa. C.S. § 1501.

2
reasonableness and justness.5 Peoples Industrial Intervenors (PII)6 filed a formal
complaint on February 1, 2024.
At a prehearing conference, the Administrative Law Judge (ALJ)
assigned to the case granted intervenor status to Pennsylvania Independent Oil & Gas
Association (PIOGA), Pennsylvania Weatherization Providers Task Force (PWPTF),
and the Coalition for Affordable Utility Services and Energy Efficiency in
Pennsylvania (CAUSE-PA). The ALJ conducted three days of public input hearings
on the matter in March of 2024. On May 9, 2024, the ALJ held an evidentiary hearing
at which several witnesses testified, and the ALJ entered the parties’ written testimony
and exhibits into the record. Counsel advised the ALJ that all of the parties except for
the OCA had reached an agreement on all issues.
The OCA submitted the testimony of Rodger D. Colton, who explained
that he owns a public finance and general economics firm that advises various entities
on rate and customer service issues involving water/sewer, natural gas, and electric
utilities, with a focus on low-income utility issues. (R.R. at 184a.) During his
examination, the following exchange took place concerning Peoples’ service
termination procedures for non-payment of arrears:

Q. In your analysis of [Peoples’] disconnection data, does
there appear to be any relationship between the increased
disconnection of service for non-payment and zip codes with
the highest percentage of black households?

5
Section 1301(a) of the Code mandates that any rate increases be just and reasonable and
provides in pertinent part: “every rate made, demanded, or received by any public utility, or by any
two or more public utilities jointly, shall be just and reasonable, and in conformity with regulations
or orders of the [C]ommission.” 66 Pa. C.S. § 1301(a).

6
PII is an ad hoc group of energy-intensive customers receiving natural gas transportation
services from Peoples, including Duquesne University, Indiana Regional Medical Center, and
WHEMCO, Inc. (App. A116, n.3.)

3
A. Yes. I begin by noting that based on the information I have
reviewed, I have seen no indication of intentional
discrimination on the part of [Peoples]; however the data
does appear to show a correlation or relationship between the
increased disconnection of service for non-payment and zip
codes with the highest percentage of black householders. In
reaching this conclusion, I began by identifying the 40 zip
codes with the highest percentage of Black householders in
[Peoples’] service territory. I calculated the percentage of
total Peoples customers living in those zip codes. I then
examined the number of nonpayment disconnections that
occurred in those zip codes and calculated the percentage of
total Peoples disconnections occurring in those zip codes. []
The data shows that 29% of [Peoples’] total customer base
resides in the 40 zip codes with the greatest percentage of
Black householders. In contrast, between 38% and 47% of
the total number of [Peoples’] nonpayment service
disconnections occur in those 40 zip codes.

[The data] further shows that this disproportionate number of
disconnections does not occur in these zip codes with a high
penetration of Black householders because of a higher
penetration of low-income households in those zip codes.
Indeed, the percentage of total Black householders with
income at or below 150% [of the] F[ederal ] P[overty]
L[evel] is lower than the percentage of total Black
householders overall in the 40 study zip codes. While 29%
of the total Black householders live in these 40 zip codes,
only 23% of the total population with income at or below
150% of Poverty does so.
....

Q: Please explain why this data and information is relevant
in this case?

A: This information is relevant to quality-of-service concerns
and the provision of service on fair and equitable terms
within Peoples’ service territory. Peoples is likely not even

4
aware of this correlation, and I think it is important to shed
light onto it to ensure that it can be remedied in the near term.

Q. What do you recommend?

A. I recommend that Peoples conduct a root cause analysis
to determine what is driving this disproportionate level of
utility disconnections within the 40 zip codes with the
highest penetration of Black households. Once this root
cause analysis is conducted, Peoples should commit to taking
steps to address the cause with the commitment of reducing
disproportionate disconnections within these zip codes.
(R.R. at 203a-05a.) Mr. Colton opined that “[b]ased on the information that is currently
available, the relationship cannot be explained by reference to factors other than race.”
(R.R. at 343a.)
In response, Peoples presented the testimony of Heather Doyle-Conley,
the Vice President of Customer Operations for Essential Utilities, Inc., who leads
customer operations for Peoples. Ms. Doyle-Conley disagreed with Mr. Colton’s
position that a root cause analysis was necessary because:

collections activities, including termination, are strictly
arrears based. Mr. Colton noted he did not see any intention
that [Peoples] initiates termination of service in a
discriminatory manner and Mr. Colton is indeed correct.
[Peoples] does not disconnect service based on
demographics and does not discriminate.
....

The collections process is automated. It first identifies
accounts with arrears that have reached a threshold for
potential disconnection of service. Any account that
exceeds the threshold would first receive a notice of
disconnection that provides not only the amount of
arrears, but also offers information to the customer about
contacting [Peoples] to discuss payment arrangements,
provide a medical certificate and to contact the []

5
Commission. The notice also includes information on
available cash assistance, such as [Peoples’] hardship
fund and the Low Income Home Energy Program
(“LIHEP”). If customers do not respond to the notice, the
account moves into the next step which is personal contact.
Personal contact attempts can be made via telephone or field
visit, depending on the availability of a working phone
number for the household. If the account arrears have not yet
been addressed, the account will finally move to the creation
of a service order for field service teams to disconnect the
gas service. This is a color-blind process that does not
consider any demographical information about the
customer or the area in which the customer resides.
(R.R. at 299a, 377a) (emphasis added).
On May 10, 2024, the ALJ issued a briefing order requiring the parties to
file a joint petition for settlement7 along with statements in support and briefs. On May
30, 2024, Peoples, I&E, OSBA, PII, and PIOGA filed a Joint Petition for Non-
Unanimous Settlement (Non-Unanimous Settlement) along with statements in support.
CAUSE-PA and PWPTF indicated that they did not oppose the Non-Unanimous
Settlement, while the OCA filed Comments in Opposition to the Non-Unanimous
Settlement and a supporting brief in June of 2024.
On July 15, 2024, the ALJ issued a Recommended Decision advising the
Commission to grant the Joint Petition to approve the Non-Unanimous Settlement
without modification. In doing so, the ALJ recommended that the Commission deny
the OCA’s request that it order Peoples to conduct a root cause analysis concerning its
service termination procedures for non-payment in the areas of its service territory with
the highest proportion of Black households. In rejecting the OCA’s claim that a root
cause study must be ordered, the ALJ recognized that “[a]ddressing the root cause of

7
We note that “[i]t is the policy of the Commission to encourage settlements.” 52 Pa. Code
§ 5.23 (a).

6
poverty in certain communities and demographics is important,” but that a root cause
analysis was not warranted based on the circumstances of this case where Peoples’
automated termination procedure is strictly arrearage-based, does not disconnect
customers on the basis of demographics, and there is no evidence in the record of
explicit discrimination. (App. A 191.)
The OCA filed 18 exceptions to the Recommended Decision, including
Exception No. 17, which challenged the ALJ’s determination regarding the necessity
for a root cause analysis.8 The Commission issued an order on September 12, 2024, in
which it adopted the ALJ’s Recommended Decision, denied all of the OCA’s
exceptions, and approved without modification the Joint Petition for Non-Unanimous
Settlement. In rejecting the OCA’s Exception No. 17, the Commission determined:

The record reflects that [Peoples] provided substantial
evidence that its termination procedures are automated based
on the amount of the arrearage and do not account for
demographics. Without any evidence that [Peoples’]
procedures are discriminatory – explicitly or implicitly – the
OCA has failed to persuade us that a root cause analysis is
justified. Simply put, we echo I&E in stating it is not our role
to impose such an analysis upon a single utility, absent proof.
(App. A106.)
This petition for review followed. Peoples, PIOGA, PII, and CAUSE-PA
have intervened in this appeal.9

8
Exception No. 17 stated: “The ALJ erred in determining that the OCA must prove that
Peoples engaged in explicit discrimination as a condition of requiring Peoples to conduct a root cause
analysis regarding termination of black households.” (R.R. at 1272a.)

9
Peoples submitted a brief supporting the Commission’s order. The PIOGA joined Peoples
in requesting that this Court affirm the Commission’s decision and noted that, although the negotiated
Non-Unanimous Settlement of the parties involved multiple issues and matters, the issue before us
(Footnote continued on next page…)

7
Discussion
The OCA raises overlapping arguments on appeal, all of which challenge
the Commission’s denial of its request to order Peoples to conduct a root cause analysis
concerning its service termination procedures for non-payment of arrears in Black
neighborhoods within its service territory. The OCA contends that Peoples’
termination procedures violate Section 1501 of the Code, which requires that all utility
services, including termination procedures, be adequate and reasonable, even if no
explicit or implicit discriminatory intent is established. (OCA’s Brief, at 15-21, 32-
33.) The OCA additionally maintains that under Pennsylvania law, once a plaintiff
establishes that a particular procedure results in a disparate impact, there is no need to
show an intent to discriminate, either explicitly or implicitly, so long as there is no
legitimate explanation as to why the policy results in the disparate impact. Id. at 22-
24, 28-31. According to the OCA, the Commission applied an incorrect legal standard
by failing to apply a disparate impact analysis to its request for a root cause analysis,
as is required under article I, Section 29 of the Pennsylvania Constitution.10 Id. at 14,
20. To support its claim, the OCA relies on Mr. Colton’s testimony indicating that he
identified 40 zip codes within Peoples’ service territory containing the highest
percentage of Black households within which customer accounts are terminated for
nonpayment of arrears at a greater rate than in other service locations despite any
evidence that these areas are low income. Id. at 25-27.

on appeal is very narrow. (PIOGA Br., at 5.) Intervenors PII and CAUSE-PA did not file appellate
briefs and were precluded from participating in oral argument.

10
“Equality of rights under the law shall not be denied or abridged in the Commonwealth of
Pennsylvania because of the race or ethnicity of the individual.” Pa. Const. art. I, § 29.

8
Peoples, however, maintains that the OCA, by failing to raise this
disparate impact issue below, has waived its right to argue on appeal that the
Commission should have applied this standard, as OCA never articulated this new legal
theory to the Commission. (Peoples’ Br., at 12.); see also Pa.R.A.P. 302(a) (issues not
raised in prior proceedings are waived on appeal).11
As a general matter, “issue preservation is foundational to proper appellate
review.” Trigg, 229 A.3d at 269. Requiring issues to be properly raised first before
the Commission ensures that it has the opportunity to consider a potential appellate
issue and correct any error at the first available opportunity, promotes the orderly and
efficient use of judicial resources, and ensures fundamental fairness to the parties. See
id. Our Supreme Court has emphasized that “[w]aiver is indispensable to the orderly
functioning of our judicial process and developed out of a sense of fairness to an
opposing party and as a means of promoting jurisprudential efficiency by avoiding
appellate court determinations of issues which the appealing party has failed to
preserve.” Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1125 (Pa. 2000). The
Supreme Court has also held that “mere issue spotting without sufficient analysis or
legal support precludes appellate review.” Commonwealth v. Armolt, 294 A.3d 364,
379 (Pa. 2023) (determining issue was waived due to “appellant’s failure to adequately
develop it with argument, applicable authority, and pertinent analysis.” ) (emphasis
added).
Here, we are constrained to conclude that the OCA waived its disparate
impact argument, as it never raised this issue before the Commission, but included the
issue in its legal brief. In its 152-page brief filed with the Commission, the OCA

11
“The issue of waiver presents a question of law, and, as such, our standard of review is de
novo and our scope of review is plenary.” Trigg v. Children’s Hospital of Pittsburgh of UPMC, 229
A.3d 260, 269 (Pa. 2020).

9
dedicated only two pages to its request for a root cause analysis, in which it cited no
caselaw or legal authority whatsoever to explain the legal basis for its claim. (See
R.R. at 710a-711a.) Instead, the OCA referred the Commission only to Mr. Colton’s
testimony concerning disproportionate disconnection data, rather than to any legal
authority pursuant to which the Commission could appropriately grant the requested
relief. Similarly, the OCA’s Exception No. 17 did not include any reference to the
disparate impact standard, and simply asserted: “The ALJ erred in determining that the
OCA must prove that Peoples engaged in explicit discrimination as a condition of
requiring Peoples to conduct a root cause analysis regarding termination of black
households.” (R.R. at 1272a.)
Additionally, and critically, in its appellate brief and at oral argument
before this Court, the “OCA recognize[d] that the application of the disparate impact
standard to terminations for nonpayment of public utility service is one of first
impression.” (OCA’s Br., at 17) (emphasis added). The OCA likewise averred that
“[d]isparate impact analyses have not been applied in the context of adequate and
reasonable public utility service, specifically, but other areas of law provide a two-
part test[.]” (OCA’s Br., at 13) (emphasis added.) The OCA explained this test to
this Court as follows:
Disparate impact analyses in other areas of law, or
pursuant to other statutory mandates, are instructive and
provide a two-part test: a claimant is required to establish a
prima facie case that a disparate impact occurs, creating a
presumption of discrimination, which the defendant then
must rebut by demonstrating that the disparate impact
resulted from legitimate, non-discriminatory practices.

To inform this Court’s determination as to how a
disparate impact analysis should be conducted under Section
1501 of the Public Utility Code, the OCA provides the below

10
summary of how disparate impact analyses have been
conducted by the courts of this Commonwealth.
(OCA’s Br., at 22) (emphasis added.)
However, during rebuttal argument in this Court, when the OCA was
questioned as to whether it preserved this disparate impact argument, the OCA
conceded that it did not “use that particular phrase” before the ALJ or the
Commission.12 Therefore, despite the admitted novelty of its disparate impact
argument, the OCA failed to expressly raise it below, leaving the Commission without
notice of the specifics of its claim within the context of its broader Section 1501 issue.
Furthermore, in its brief and reply brief filed in this Court, Petitioner did not identify
where in the record it raised its disparate impact claim or its asserted two-part test, as
required by Rules 2117(c) and 2119(e) of the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2117(c), 2119(e). Instead, the OCA directs our attention to
its Section 1501 claim and Exception No. 17 requesting a root cause analysis, which
do not explain the disparate impact standard. (See OCA’s Reply Br., at 4, 20-21.) The
OCA additionally concedes that because application of the disparate impact standard
under Section 1501 of the Code is one of first impression, “the need to include
additional legal authority beyond the arguments made to the Commission to assist
this Court in its resolution of the issue is clear.” (Id. at 21 n. 7) (emphasis added).
Based on this record, we conclude the OCA has waived the disparate
impact issue on appeal. See Pa.R.A.P. 302(a); see also HIKO Energy, LLC v.
Pennsylvania Public Utility Commission, 209 A.3d 246, 261 (Pa. 2019) (stating general
rule that “a party waives appellate review of a claim when it fails to raise the issue

12
This Court may consider statements made by counsel during oral argument in rendering our
decisions. See, e.g., McElfresh v. Department of Transportation, 963 A.2d 582, 587 (Pa. Cmwlth.
2008); R. G. Johnson Company v. Commonwealth of Pennsylvania, 411 A.2d 1315, 1316 (Pa.
Cmwlth. 1980), affirmed, 433 A.2d 465 (Pa. 1981).

11
before an administrative tribunal rendering a final decision”); Retail Energy Supply
Association v. Pennsylvania Public Utility Commission, 185 A.3d 1206, 1230 (Pa.
Cmwlth. 2018) (en banc) (stating that when a party fails to raise an issue, even one of
a constitutional dimension, in a PUC proceeding, the issue is waived and cannot be
considered for the first time on appeal).
We recognize that the OCA refutes Peoples’ claim of waiver by framing
its disparate impact argument as merely “additional authority [] provided on appeal” in
support of its original Section 1501 issue. (OCA’s Reply Br., at 4.) However, we find
this assertion unpersuasive, as the OCA simultaneously avers that a disparate impact
analysis has never been applied in the context of a Section 1501 action and is a matter
of first impression. As such, it was incumbent upon the OCA to present its argument
to the ALJ and the Commission in the first instance, both for issue preservation
purposes and because its failure to do so deprives this Court of the Commission’s
insight and expertise in addressing this novel issue. See Popowsky v. Pennsylvania
Public Utility. Commission, 937 A.2d 1040, 1059 (Pa. 2007) (recognizing that the
Commission is charged with administering public utility regulation and employs
specialized expertise in making determinations concerning the weight and balancing of
associated policy considerations). We reiterate that the OCA did not merely
neglect to say the words “disparate impact” to the Commission- it also failed to
raise the very specific two-part test it requests this Court to apply for the first time
on appeal.
In reaching this conclusion, we are mindful that the Pennsylvania
Supreme Court has “held on numerous occasions that where the parties fail to preserve
an issue for appeal, an appellate court may not address the issue, even if the disposition
of the trial court was fundamentally wrong.” Gibraltar Rock, Inc. v. Department of

12
Environmental Protection, 286 A.3d 713, 724 (Pa. 2022) (determining that
Commonwealth Court erred by deciding appeal based on independent consideration
and analysis of unpreserved constitutional and statutory issues); see also Knarr v. Erie
Insurance Exchange, 723 A.2d 664, 665 (Pa. 1999) (concluding Superior Court
exceeded its scope of review by addressing argument that had been waived, regardless
of accuracy of its legal analysis).13 Our Supreme Court has also emphasized that in
assessing whether waiver applies, a critical factor is whether the record
demonstrates “the lower tribunal’s comprehension of the claim.” HIKO Energy,
LLC, 209 A.3d at 263. In HIKO, the Court rejected the appellant’s position that it
properly preserved its appellate issue during the proceedings before the Commission,
and explained:

HIKO asserts that it raised the excessive fines constitutional
theory in its Answer to [the] Complaint, as well is in its
Exceptions to the ALJs’ Penalty Decision. In its Answer [to
the] Complaint, HIKO asserted that the “requested relief is
grossly disproportionate to said violation(s).” In the
Exceptions filed to the ALJs’ Initial Decision, HIKO
generally argues that the ALJs failed to properly apply the
penalty factors and consider mitigating circumstances, which
resulted in a disproportionate penalty. Critically, however,
the PUC did not recognize these references as HIKO
raising a constitutional argument, because the Commission
did not analyze or mention whether the penalty complied
with the Excessive Fines Clause. Accordingly, because
HIKO failed to raise its constitutional challenge before the
PUC, we hold that the argument is waived.

13
The OCA has also filed an application for relief in this Court requesting that we take judicial
notice of a Secretarial Letter and Report issued by the Commission on August 5, 2025, in a case
involving a water and wastewater rate increase requested by the Pennsylvania-American Water
Company (PAWC). See Pa.R.E. 201 (permitting courts to take judicial notice of adjudicative facts).
In light of our disposition of waiver, we deny the OCA’s application for relief.

13
Id. (record citations omitted) (emphasis added).
Likewise, here, the ALJ and the Commission did not recognize the
OCA’s root cause analysis claim as raising a disparate impact argument and therefore
made no findings as to disparate impact, as the OCA failed to frame its issue as
such. The ALJ and the Commission were therefore never given the opportunity to
assess whether the disparate impact standard applies in the context of a Section 1501
claim, and, if it does, to articulate the appropriate analytical framework. Given the
significance of the disparate impact claim, and its potential implications for the natural
gas industry, it is imperative that the Commission be given the opportunity to properly
address the issue first, before this Court can review any claim of error.
In reaching this determination, we reiterate that the OCA dedicated only
two pages of its voluminous brief filed with the Commission to addressing its root
cause analysis request, wherein it cited no supporting legal authority, and referenced
only witness testimony. The Dissenting Opinion has followed suit, in that it points to
Mr. Colton’s testimony to support its position that the OCA has preserved its disparate
impact issue for appeal. However, the Dissent neglects to point to any place in the
record where the OCA preserved this issue with sufficient legal analysis discussing
applicable authority as is mandated by our caselaw. See Armolt, 294 A.3d at 379.14

14
The Dissent concedes that the OCA failed to “establish[] the existence of a disparate impact”, but
nonetheless concludes that the OCA is entitled to the study, despite this absence of proof. (Leadbetter,
J., dissenting at 1, n.1). The Dissent cites no legal authority to support this position and makes no
attempt to explain on what legal grounds the study should be ordered. The OCA’s entire argument is
based on its asserted meeting of the disparate impact legal standard, which the Dissent recognizes
was not met. (See OCA’s Br., at 15.) However, as outlined above, the OCA never raised this legal
standard during the proceeding below, and it is waived. Significantly, we again emphasize the OCA’s
brief filed with the Commission failed to include any mention of the disparate impact legal standard.
(R.R. at 710a-711a.) In fact, in requesting the root cause analysis, the brief does not discuss any
legal authority at all. See id. The merits of the issue therefore cannot be addressed by this Court.

14
Conclusion
Because the OCA did not raise its disparate impact issue before the ALJ
or the Commission, we are constrained to find the issue waived on appeal. We
therefore affirm the September 12, 2024, order entered by the Commission.15

---

PATRICIA A. McCULLOUGH, Judge

Judge Fizzano Cannon did not participate in the decision for this case.

15
We observe that the OCA is not without an avenue of redress for its disparate impact claim.
At oral argument for this case, after counsel for the Commission indicated that this rate proceeding
was not the appropriate method of bringing this claim, the following exchange took place:

Q. What proceeding would be appropriate for that?

A. [The OCA] could file a formal complaint with the Commission and
hopefully obtain additional evidence which would establish if there was
or was not discrimination in the practices, and it could be remedied that
way.

(Commonwealth Ct. Oral Argument, 12/08/25, at 1:44:15.) The Commission also pointed out this
alternate method of redress in its brief by stating: “[i]f OCA wants the Commission to decide whether
Peoples’ service termination practices violate § 1501, the proper avenue is for OCA to file a formal
complaint with the Commission.” (Commission’s Br., at 29.)

15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darryl Lawrence, :
Petitioner :
:
v. : No. 1346 C.D. 2024
:
Pennsylvania Public Utility :
Commission, :
Respondent :

ORDER

AND NOW, this 24th day of March, 2026, the order entered by
Pennsylvania Public Utility Commission on September 12, 2024, is hereby
AFFIRMED. The August 18, 2025 application for relief filed by the Office of
Consumer Advocate is hereby DENIED.

---

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darryl Lawrence, :
Petitioner :
:
v. : No. 1346 C.D. 2024
: ARGUED: December 8, 2025
:
Pennsylvania Public Utility :
Commission, :
Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION BY
SENIOR JUDGE LEADBETTER FILED: March 24, 2026

I must respectfully dissent, because I do not agree that OCA waived the
issue of whether it had put on sufficient evidence to justify a root cause study to
determine whether Peoples’ practices had a disparate impact on black households.1
While OCA raised a plethora of issues in opposition to Peoples’ proposal, this was
clearly one of them.
As the majority noted, OCA presented the testimony of Roger Colton,
who stated that, “I have seen no indication of intentional discrimination on the part
of the Company; however, the data does appear to show a correlation or relationship
between the increased disconnection of service for non-payment and zip codes with

1
I do not believe that OCA established the existence of a disparate impact, only that it offered
sufficient evidence to justify the need for the recommended study.
the highest percentage of black householders. . . . I recommend that Peoples conduct
a root cause analysis to determine what is driving this disproportionate level of utility
disconnections within the 40 zip codes with the highest penetration of Black
households.” Testimony of Roger Colton at N.T. 20, 22, R.R. 203a, 205a. Later in
his testimony, he opined:
Peoples Rule 3 provides that the Company may require a
deposit if, among other things, “the Applicant is unable to
establish creditworthiness to the satisfaction of the
Company through the use of a generally accepted credit
scoring methodology which employs standards for using
the methodology that fall within the range of general
industry practice.” (Rule 3.E(2), Gas-PA PUC No. 48,
Original Page No. 19).

This provision, standing alone, carries with it an elevated
risk of discrimination, even if unintentionally. . . . To the
extent that a Peoples “credit scoring methodology”
considers whether a consumer is employed and, if so, for
how long, that reliance on the lack of employment (or the
lack of long-term employment) may have the effect of
discriminating against consumers who lack employment
because they receive public assistance (one of the
protected classes under ECOA). In addition, any
consideration of whether a consumer is a homeowner, as
well as about whether a consumer is banked or unbanked,
has a high probability of having racially disparate
impacts. It will come as no surprise, for example, that the
National Association of Realtors found that the
homeownership gap for Blacks and Hispanics has grown
even bigger in recent years. So does the question of
whether a consumer has a bank account (credit card, loan
or other credit reference) have distinct racial implications.

Testimony of Roger Colton at N.T. pp. 79-80, R.R. 262a-263a (emphasis added).
Moreover, in it’s Main Brief to the Commission, OCA argued:

The OCA recommends that Peoples conduct a root cause
analysis to determine why there are a disproportionate

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number of terminations for nonpayment in the portions of
the Company’s service territory with the highest
proportions of Black householders. OCA St. 6 at 22.

OCA witness Colton identified that, in the 40 zip codes
within Peoples’ service territory that contain the greatest
proportion of Black householders, customers are
terminated for nonpayment at a greater rate than in other
portions of the Company’s service territory. Id. at 22.

Peoples should conduct a root cause analysis to determine
why there is a connection between higher levels of
termination and a higher presence of Black householders
to ensure that there is no portion of Peoples’ termination
process which may be compromised by unintended and
implicit biases. OCA St. 6 at 22.

The Commission should take this opportunity to direct and
the Company to conduct a root cause analysis, as
suggested by Mr. Colton, in order to ensure that its
termination procedures do not have any incidental
discriminatory impacts. Id.
Main Brief of OCA at pp. 128-29, R.R. 710a-11a.
Simply put, I believe this is more than sufficient to preserve the issue.

BONNIE BRIGANCE LEADBETTER,
President Judge Emerita

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